In Agins v. City of Tiburon, 447 U.S. 255 (1980), a case involving a facial takings challenge to certain municipal zoning ordinances, the U.S. Supreme Court declared that “[t]he application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests, . . . or denies an owner economically viable use of his land . . . .” Because this statement was phrased in the disjunctive, Agins’ “substantially advances” language had been read to announce a stand-alone regulatory takings test. The U.S. Supreme Court now unanimously held that the “substantially advances” formula minted in Agins  was not a valid method of identifying regulatory takings for which the Fifth Amendment requires just compensation. In the present case, the lower courts applied Agins’ “substantially advances” formula to strike down a Hawaii statute that limited the rent that oil companies could charge to dealers who leased service stations owned by the companies. The lower courts held that the rent cap effected an uncompensated taking of private property in violation of the Fifth and Fourteenth Amendments because it did not substantially advance Hawaii’s asserted interest in controlling retail gasoline prices. The U.S. Supreme Court reversed holding that the “substantially advances” formula had no proper place in takings jurisprudence under the Fifth Amendment. Chevron’s challenge to the Hawaii statute in this case illustrated the flaws in the “substantially advances” theory. To begin with, it was unclear how significantly Hawaii’s rent cap actually burdened Chevron’s property rights. (See the Court’s opinion for details.) Chevron plainly was not seeking compensation for a taking of its property for a legitimate public use, but rather an injunction against the enforcement of a regulation that it alleged to be fundamentally arbitrary and irrational. The inapplicability of the “substantially advances” formula of course applied to takings involving religious institutions. As stated by the Court, the formula “is not only doctrinally untenable as a takings test – its application as such would also present serious practical difficulties. The Agins formula can be read to demand heightened means-ends review of virtually any regulation of private property. If so interpreted, it would require courts to scrutinize the efficacy of a vast array of state and federal regulations – a task for which courts are not well suited. Moreover, it would empower – and might often require – courts to substitute their predictive judgments for those of elected legislatures and expert agencies.”   Case # 1919 (U.S. 2005). See also the even more important case of  Kelo v. City of New London, ___ U.S. ___, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005), decided the same term.

A dedicated public roadway ran between two parcels of land owned by a church. The southern end of the roadway terminated at the border of a cemetery owned and operated by a Masonic Lodge. The City adopted a resolution to proceed with the development of the dedicated public roadway so as to provide direct public access to a shelter being constructed within the cemetery. This shelter, located near the point where the dedicated roadway terminated at the cemetery's northern boundary, was designed to facilitate grave-side funeral services. The church opposed development of the roadway. Instead it sought to have the roadway permanently closed so that it could optimally develop and use its properties, which were bisected by the dedicated road. The church unsuccessfully challenged the development of the public roadway. (1) There was no unconstitutional taking of the church’s property without just compensation in violation of the Fifth Amendment, nor was there a failure, in violation of the Fifth Amendment, to put the dedicated roadway to a public use. In discussing these issues, the court was concerned with the nature of the City’s interest in the dedicated property, whether the dedication had terminated or been abandoned, the effect of an earlier rededication of the roadway by the church whereby the boundaries of the road had been shifted to allow the church to satisfy a setback requirement, and whether providing access to the shelter situated on the cemetery’s land was a public purpose. (2) The refusal to close the dedicated roadway did not violate the church’s free exercise rights under the First Amendment, and (3) the refusal to close the roadway for the benefit of the church, but to develop it to the benefit of the Masonic Lodge did not violate the Establishment Clause of the First Amendment. (4) The church’s due process rights under the Fourteenth Amendment were not violated. (5) Because the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) amended the Religious Freedom Restoration Act (RFRA), which had been declared unconstitutional, the court could construe the church's RLUIPA claim as an extension of its RFRA claim. However, the City's decision regarding the fate of the dedicated roadway was not based upon any zoning or landmarking law restricting the development or use of the church's own private property and consequently the church failed to satisfy the jurisdictional requirements of the RLUIPA. See 42 U.S.C. § 2000cc(a)(2)(C)    Case # 1301 (6th Cir.)

As part of its planned expansion of O’Hare International Airport, the City of Chicago planned to acquire land used by two religious cemeteries (St. John’s and Rest Haven) and to have the interred bodies relocated. Pursuant to the request of the City, the Illinois General Assembly passed an amendment stating that nothing in the Illinois Religious Freedom Restoration Act (IRFRA) was to limit the authority of the City to exercise its powers under the O’Hare Modernization Act to acquire by condemnation or otherwise, any property used for cemetery purposes within or outside of the City and to require that the cemetery be removed to a different location. The U.S. District Court for the Northern District of Illinois, held, inter alia, that: (i) Plaintiffs’ rights under the free exercise clause of the First Amendment were not violated because any burden on religious exercise was the incidental effect of neutral, generally applicable, and otherwise valid actions on the part of the City. (ii) The City’s role in the passage of the amendment to the IRFRA did not violate the free exercise clause of the First Amendment. In addition, strict scrutiny did not apply when reviewing the City’s actions with respect to the passage of the amendment to the IRFRA. (iii) Plaintiffs’ claim that the action of the Legislature in exempting their religious cemeteries from the protection of the IRFRA – while allegedly preserving IRFRA protection for every other religious institution, including all other religious cemeteries – violated equal protection was dismissed. The amended IRFRA did not strip only the two affected religious cemeteries of state RFRA protection; but provided that any and all cemeteries (as well as other property) in the path of the O’Hare expansion were subject to acquisition pursuant to the O’Hare Modernization Act. (iv) Plaintiffs’ claim against the City under the Religious Land Use and Institutionalized Persons Act (RLUIPA) was dismissed because the City was not acting pursuant to a zoning or landmarking law, but was exercising its power of eminent domain. (v) Plaintiffs’ federal RFRA claim against the Federal Aviation Administration (FAA) was dismissed because the U.S. Court of Appeals for the District of Columbia was the proper forum for claims against the FAA. (vi) The claims brought by one of the two religious cemeteries (Rest Haven) was moot because the planned acquisition of said cemetery and the disinterment of the resident bodies was no longer in the plans. The Seventh Circuit affirmed, holding that: (1) The district court did not err in dismissing with prejudice all claims brought by Rest Haven cemetery. The Court discusses why said cemetery’s claims were moot despite the cemetery’s concern that the City might change its mind in the future and seek yet again to acquire the cemetery land for airport use. Court also discusses why said cemetery was not entitled to a permanent injunction requiring the City to leave the cemetery undisturbed until the end of time. (2) The district court lacked jurisdiction to review plaintiffs’ claims against the FAA because the claims fell within the exclusive jurisdiction of the court of appeals. (3) The amendment of the IRFRA did not violate the Free Exercise Clause of the First Amendment. (4) Although it was unnecessary to ask whether the plan for O’Hare passed strict scrutiny test – given that the rational review test of Smith applied to the taking of St. John’s cemetery and the disinterment of the buried bodies –the plan also passed muster under a strict scrutiny analysis: there was both a compelling governmental interest in fixing the problems from which O’Hare suffered and the planned taking of St. John’s cemetery and the disinterment of the bodies was also the least restrictive alternative in fixing the problems from which O’Hare suffered. (5) The district court did not err in defining the necessary elements of St. John’s free exercise claim. (6) The amendment of the Illinois RFRA did not violate the Fourteenth Amendment’s Equal Protection Clause by depriving St. John’s of constitutional and statutory legal protections that were available to every other cemetery in the state. (6) The plan to condemn the St. John’s cemetery was not a “land use regulation” within the meaning of RLUIPA. But see the dissent on points (3) and (4)   Case # 2978 (7th Cir.), affirming Case # 2394 (N.D. Ill.) and Case # 2117 (N.D. Ill.). In Case # 2531 (D.C. Cir.) the U.S. Court of Appeals for the District of Columbia, by a vote of 2 to 1 held that the Federal Aviation Administration’s approval of the City’s plan and its expressed intention to provide federal funding did not violate the federal Religious Freedom Restoration Act (RFRA) on the ground that the federally approved runway configuration, which required the relocation of a church cemetery, was not the least restrictive means of satisfying the government’s compelling interest in reducing delays. Any burden on the exercise of religion caused by the City’s airport expansion plan was held “not fairly attributable to the FAA.” A federal agency’s determination that a City’s expansion plan is eligible for federal funding does not render the City’s implementation of the plan tantamount to federal action that is the source of the burden on the free exercise of religion. The airport was owned by the City of Chicago and the expansion plan was prepared and was to be implemented by the City, which was prepared to proceed without federal funds if necessary. Because the federal RFRA does not apply to burdens imposed by states or their subdivisions (here the City of Chicago), and because any burden on petitioner’s free exercise rights were not attributable to the FAA, the Court did not reach the question whether the FAA had shown a compelling governmental interest in imposing a burden on the free exercise of religion. The Court also held, unanimously, that it lacked jurisdiction to consider the petitioners’ challenge to the FAA letter expressing a non-binding intention to obligate federal funding for the expansion because the letter was not a final order. Finally, the Court held, unanimously, that the contentions that the FAA (1) used stale and unreliable data in a manner arbitrary, capricious, and contrary to law under the Administrative Procedure Act, 5 U.S.C. §§ 701-706, and the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347 (NEPA), and (2) violated the Due Process Clause of the Fifth Amendment by denying petitioners fair decisionmaking procedures, were both without merit. See also Case # 2143 (W.D.N.Y.) infra.

This case involved a dispute between a City and a mega-church over an 18 acre corner property put together and acquired by the church for purposes of building a large church facility. The 18 acre site was part of a larger, 300 acre, Plan Area that the City considered to be blighted and which the City targeted for economic development. For nearly 10 years the City failed to successfully effect major development in the Plan Area. However, when the church, which was a permitted use within the area, applied to obtain the appropriate land use permits, the permits were denied on the ground that the Conditional Use Permit (CUP) application was incomplete, a determination ruled incorrect on administrative appeal. However, the City wanted the 18 acre parcel acquired by the church to be used as commercial retail space by Costco, a major discount retailer. To this end, not long after it was determined that the church’s CUP application was not incomplete, eminent domain proceedings were begun to acquire the 18 acre parcel. The church filed an action in federal district court challenging various land use decisions by the City and the local Redevelopment Agency. The church claimed, inter alia, that the City's refusal to grant its application for a CUP, its exercising eminent domain over its 18 acre property, and various other zoning actions violated (i) the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), (ii) the church’s freedom of religion under the First Amendment; (iii) its rights to speak and assemble, under the First Amendment and the Cal. Constitution (iv) its rights to due process and equal protection of the laws, under the Fourteenth Amendment and the Cal. Constitution. The church also alleged that (v) the City's actions amounted to a taking without just compensation and were a "private taking," all in violation of the Fifth Amendment and (6) were null and void for being religiously discriminating. The federal district court granted the church’s motion for a preliminarily injunction enjoining the condemnation. The court held: (1) Application for a preliminary injunction was not barred by either the federal Anti-Injunction Act or the Younger abstention doctrine. (2) Defendants were wrong in asserting that only the condemnation proceedings were at issue on the motion for a preliminary injunction and that the church’s claims regarding the denial of its CUP and the City’s other land use decisions were irrelevant to the motion. (3) Defendants' various zoning decisions and efforts to condemn the church’s property were subject to a strict scrutiny test and the City's actions could only be upheld if they were the least restrictive means taken to advance a compelling government interest. Defendants’ actions were not governed by a rational basis standard. RLUIPA provided a strict scrutiny standard of review for land use cases. In so holding the court examined the constitutional basis of RLUIPA and how it differed from the Religious Freedom and Restoration Act of 1993 (RFRA). (4) Even in the absence of RLUIPA, a strict scrutiny standard of review was appropriate under the Free Exercise Clause of the First Amendment, because (i) the case involved "individualized governmental assessments" and (ii) defendants' actions were not neutral, but instead, under the facts, appeared to be specifically aimed at discriminating against the church’s religious use. There was significant circumstantial evidence of a discriminatory intent. For nearly a decade, the 18 acre property sat vacant. Despite having been declared a blighted area, having been the subject of two separate development plans, and being under the authority of a Redevelopment Agency, no significant improvements had been made. Indeed, less than 10% of the 300 acre Plan Area had been developed. However, once the church purchased land within the Plan Area, the City became a bundle of activity and developed the project to place Costco on the 18 acres owned by the church. The activity suggested that the City was simply trying to keep the church out of the City, or at least from the use of the church’s land. (5) The church was likely to succeed on the merits of proving that, under the terms of the RLUIPA, the City’s zoning and eminent domain actions substantially burdened its exercise of religion. The court discussed the “substantial burden test” under the RLUIPA. (6) Neither the City’s interest in (i) eliminating blight or (ii) generating revenue for was, under the facts, sufficiently compelling to justify burdening the church’s religious exercise and even if the City had compelling reasons to burden the church’s religious exercise, it had to do so in the least restrictive means. (7) The church also demonstrated a likelihood of success on its takings claim under the Fifth Amendment, as it appeared the City’s plan of turning the property over to Costco was not a "public use." (8) Although RLUIPA alone established that the public interest was strongly in favor of granting the injunction, other factual evidence indicated that the public interest and irreparable harm to the church favored granting the preliminary injunction, Case # 1349 (C.D. Cal.)

Atop Mount Soledad, an 822-foot hill in the La Jolla community of San Diego, California, there presently stood a war memorial dominated by a large Latin cross, containing six concentric walls around the base of the Cross and approximately 2,100 black stone plaques honoring individual veterans, platoons, and groups of soldiers. In addition, paving stones honored veterans; 23 bollards (posts) honored community and veterans’ organizations; and an American flag flew from a large flagpole. The Latin Cross, which dominated the memorial, was 29 feet high and 12 feet across and stood atop a 14 foot high base (making the cross 43 feet tall). The cross was visible from miles away and towered over the thousands of drivers who traveled daily on the interstate highway below. A cross was first erected on the site in 1913 and replaced in the 1920s. After the replacement cross blew down in 1952, the City permitted a private veterans group to construct and thereafter maintain a large Latin cross on city parkland atop Mount Soledad as a tribute to war veterans. The Cross was dedicated in 1954 on Easter Sunday in a ceremony that included a Christian religious service. It was dedicated not only to fallen soldiers, but also to Jesus Christ and to “to create a park . . . worthy to be a setting for the symbol of Christianity.” The veterans’ association sent out fundraising letters that called on potential donors to support “this manifestation . . . of our faith.” Although dedicated in 1954 “as a lasting memorial to the dead of the first and second World Wars and the Korean conflict,” for most of its history the Cross served as a site for annual Easter services and there was no physical indication that the Cross was intended as a war memorial. Only after legal challenges to the cross began in the late 1980s was a plaque added designating the site as a war memorial, along with substantial physical revisions honoring veterans and it was not until the late 1990s that veterans’ organizations began holding regular memorial services at the site. In 1991 a U.S. District Court held that Mount Soledad cross violated the state constitution’s prohibition against preference of a religion. In response, the City attempted to divest itself of the cross by, inter alia, selling the cross and part of the land on which it stood. Those efforts were found by federal courts to run afoul of provisions of the state constitution. Those efforts were found by federal courts to run afoul of article I, section 4 (the no preference clause) and article XVI, section 5 (the no aid to religion clause) of the California Constitution. See, e.g., Case # 1296 (9th Cir) (en banc).  In December 2004, the U.S. Congress passed legislation declaring that upon donation of the Mount Soledad site to the federal government it would be designated a national veterans memorial and placed under the control of the Department of the Interior. The donation to the federal government was approved by the voters of San Diego and in the California Court of Appeal, reversing the lower court (the California Superior Court), upheld the vote transferring the property along with the cross to the federal government. The California Court of Appeal held, inter alia, that transfer of the property to the federal government, along with the cross, would not violate the First Amendment establishment clause or its state equivalent (Cal. Const. art. I, § 4), or Cal. Const. art. XVI, § 5 (the no aid to religion clause). The California Court was of the opinion that nothing in the voter approved Proposition A approving the donation to the federal government, or the federal legislation authorizing acceptance of the donation, required maintenance of the cross by the federal government. Whether the federal government could continue to maintain the cross without violating the First Amendment establishment clause was not before the state court, although it appeared that, based on its application of the establishment clause jurisprudence to the question before it, that the California Court of Appeal would have had no problem with continued maintenance of the cross by the federal government. See Case # 2659 (Cal. Ct. App.).  While the California Superior Court’s decision was being appealed, Congress exercised its takings power to acquire the site as federal property to be preserved as a veterans’ memorial. The federal statute directed the Secretary of Defense to enter into a memorandum of understanding with the “Mt. Soledad Memorial Association,” a coalition of religious and civic organizations, to maintain the property as a veterans’ memorial. The legislative taking by Congress divested the City of San Diego of any interest in the war memorial, rendering the necessity of a donation of the land to the federal government by the City moot. In addition, previous injunctive relief issued by a U.S. District Court ordering removal of the cross was rendered moot because the federal government, which had acquired the land, was not subject to the injunction. See Paulson v. City of San Diego, 475 F.3d 1047 (9th Cir. 2007).  The U.S. District Court rejected a challenge to the taking by the federal government. The U.S. District Court held, inter alia, that plaintiff did not have federal taxpayer standing to challenge the validity of the eminent domain seizure by the federal government. Essentially, plaintiff’s argument was that the taking of the land by the United States was improper because it was an attempt to evade the California constitution. But in enacting its own statutes, the U.S. was not limited by or subject to the California constitution, and therefore could not be liable for either violating or evading it. The fact that the U.S. wished the Mt. Soledad property to be subject solely to federal law was not in itself improper and did not result in any cognizable injury to plaintiff. The U.S. was required to abide by U.S. Constitutional requirements. However, the taking of the property by itself did not violate the establishment clause of the First Amendment. Although the federal legislation mentioned the existing cross, it did not require the continued display of the cross, nor did it even require the federal government to manage the property. The federal statute merely provided for the acquisition of land, the compensation of the land’s owners, and the maintenance of the property as a veterans memorial. These were not religious actions, nor did they injure plaintiff. Plaintiff appeared to be arguing that because the federal government was planning to violate his rights as a taxpayer by paying for the property and then maintaining a cross on the property, he had standing. This did not, however constitute the kind of “concrete and particularized” injury required for standing. And even assuming the cross remained unaltered in its present location, it was not clear that this would inevitably translate into an Establishment Clause violation. In order to determine whether plaintiff was unavoidably injured by the taking, the court would have to consider hypothetical alternative scenarios under which the memorial might be operated. It was thus doubtful the alleged injury was “actual or imminent.” Certainly it was not ripe. Further, assuming the court were to invalidate the federal law authorizing the taking by the United States, the City’s attempted donation of the property to the federal government (which the California Court of Appeal had upheld) would then come back into effect and the property would be transferred to the United States pursuant to that measure. This alternative arrangement would eliminate the expenditure of funds by the federal government, which plaintiff had to rely on as the injury giving him federal taxpayer standing. See court’s opinion for further discussion. Plaintiff, a veteran and a resident of San Diego, had also argued that the presence of the cross, to which he took offense, had effectively deprived him of use of the memorial. But while this may have affected plaintiff’s standing to challenge how the veterans memorial was operated, it has no bearing on whether he had standing to challenge the taking of the property. The taking itself merely transferred ownership and did not by itself affect whether plaintiff would be able to use the memorial. Indeed, plaintiff conceded that he had no interest in seeing the memorial operated by the City rather than the federal government. See Case # 2993 (S.D. Cal.).  Thereafter the U.S. District Court held that the continued display of the cross on federal property did not violate the establishment clause of the First Amendment to the U.S. Constitution, see Case # 3272 (S.D. Cal.), but a Ninth Circuit panel reversed, holding  that continued display of the cross on federal property violates the establishment clause   Case # 4186 (9th Cir.)

In 2004, a church located in an Agricultural zone, sought to expand its facilities, which already consisted of a church with a 1,400 seat facility; a preschool for 20 children; a “mom’s Day Out” program for up to 40 children; and a Christian Academy, serving kindergarten through eighth grades, with a maximum of 380 students. The church’s application was denied by the Board of County Commissioners. The church alleged, inter alia, that it had a claim for inverse condemnation based upon a conservation easement it had granted the county back in 1998. The church had agreed to the easement as the county had made it a condition for securing its approval of an earlier special use application by the church. The church did not argue that the conservation easement requirement amounted to an inverse condemnation as of 1998. However, the church claimed that the conservation easement ripened into an inverse condemnation when the church’s 2004 special use application, the application at issue in this case, was denied. (For the church’s argument for this contention, see the court’s opinion.) The court dismissed the inverse condemnation claim holding that any such claim accrued in 1998, when the easement was made a condition of the county’s approval of the 1997 special use application and that the claim was now barred by the applicable two year statute of limitations. For other aspects of this case, see the Case Digest   Case # 2797 (D. Colo.). For subsequent developments in the case, see Case # 4007 (10th Cir.)

By unreasonably denying a demolition permit to plaintiff monastic community under the Kansas Historic Preservation Act, defendant City violated plaintiff’s First Amendment rights. The Administrative Building which plaintiff sought to demolish was not designated as an historic property, but because it was located within 500 feet of buildings which were listed as historic properties – in fact it was physically connected to an “historic” structure – the City submitted the request for a demolition permit to the State Historic Preservation Officer, who responded with a determination that the building “is a character-defining feature of the environs and therefore its demolition would encroach upon, damage or destroy listed historic properties or their environs.” As an alternative to demolition, the Officer suggested that plaintiff market the property for redevelopment or mothball the building “until a new use can be found.” Under the Kansas Historic Preservation Act, a governing body (here the City Commission) may override the recommendation of the State Historic Preservation Officer if it finds “based on a consideration of all relevant factors, that there is no feasible and prudent alternative to the proposal and that the program includes all possible planning to minimize harm to [the] historic property.” However, by a vote of 3 to 2 the City Commission voted to deny plaintiff’s request for a demolition permit, finding mothballing to be a feasible and prudent alternative to demolition. Held: (1) There was sufficient evidence to support the conclusion that mothballing was a feasible and prudent alternative to demolition and the City Commission did not act unreasonably, arbitrarily, capriciously, and in a manner inconsistent with the Act. (2) Denial of the demolition permit constituted a violation of plaintiff’s rights under the free exercise clause of the First Amendment. While there was no evidence that the Kansas Historic Preservation Act was passed due to any religious animus or any strong evidence indicating that enforcement targeted religious groups, the City had the authority or discretion to permit the requested demolition based on subjective criteria. Thus, the City’s decision was part of a system that was designed to make case-by-case determinations, i.e., individualized exemptions. Thus the City’s action under the Act denying the demolition permit was subject to strict scrutiny, meaning the burden on plaintiff’s religious conduct violated the free exercise clause unless the City could show that its act was narrowly tailored to advance a compelling government interest. Historic preservation is not a compelling government interest. Without a compelling government interest, defendant’s refusal to grant a demolition permit violated plaintiff’s rights under the free exercise clause of the First Amendment. This holding did not imply that the Historic Preservation Act was unconstitutional. It simply stated that Kansas could not apply the Act in a manner that burdened a party’s religious beliefs. (3) The court abstained from discussing plaintiff’s claim that defendant’s actions were unconstitutional under § 7 of the Constitution of the State of Kansas Bill of Rights. (4) Plaintiff claimed that by denying the destruction permit, defendant restricted its use of the property without just compensation, in violation of the Fifth Amendment. The court rejected the City’s argument that this claim was not ripe for adjudication. It was true that Kansas had procedures to provide compensation for takings claims and if a state provides procedures for seeking just compensation, a takings claim is not ripe until such procedures have been completed. Here the plaintiff’s claim was ripe for adjudication because Kansas did not have procedure to provide compensation for a taking in the current case: First, under the terms of the Kansas Historic Preservation Act a “taking” of property could not be established by showing that the Act prevented a landowner from making a particular use of property that would be more beneficial or profitable than its current use, thereby apparently precluding an action for “inverse condemnation” allowing plaintiff to take advantage of the state procedures ordinarily available to those seeking compensation for a taking of property. Second, although the Historic Preservation Act provided that any person aggrieved by a determination by a governing body could appeal, upon appeal an award of damages was apparently inappropriate if the governing body from which the appeal was taken did not initially award damages. Here the City Commission did not award damages and hence, on appeal, a reviewing court could not award damages for any alleged “taking” pursuant to the Kansas Historic Preservation Act. Thus, again there was no available compensation procedure. Third, the Kansas Historic Preservation Act also restricted the ability to exercise the power of eminent domain. Consequently, any compensation procedures available under the Kansas Eminent Domain Procedure Act were also unavailable to plaintiff. Hence, plaintiff’s “taking” claim was ripe for adjudication. (5) However, defendant’s actions did not constitute a regulatory taking. For 16 years, plaintiff had searched for a use for the Administration Building. The building’s current dormancy was not a product of defendant’s actions. Defendant’s only relevant action was denying the demolition permit. Similarly, plaintiff had not indicated that any investment backed expectations were eliminated by defendant’s denial of the permit. Additionally, plaintiff had not demonstrated the economic impact of defendant’s action on the parcel as a whole. Although plaintiff alleged that “a boarded-up building would have a great detrimental effect on recruiting new members” and “a mothballed building would say that the Community was standing still,” the Administration Building became underutilized and dormant before defendant denied the demolition permit. (6) Plaintiff requested an order of mandamus requiring the city to issue the requested demolition permit. Because defendant’s decision was necessarily on a case-by-case basis, its decision was discretionary, not ministerial and under Kansas law mandamus is unavailable to compel a public official to perform a discretionary act. This case did not meet the criteria for the broader application of mandamus under Kansas law. (7) Plaintiff was, of course, entitled to damages under its First Amendment claim, discussed supra. However, because plaintiff requested several forms of judgment in the complaint, but did not clarify its damages under its 42 U.S.C. § 1983 free exercise claim, the court denied summary judgment as to damages and left resolution of plaintiff’s entitlement to damages for a future date   Case # 2790 (D. Kan.)

The City of New York wanted to use a Jewish congregation’s real property, which was zoned for manufacturing use, as the future site of a sanitation garage. The Congregation wanted to build a religious complex upon the property and, in furtherance of said plan, had applied to the City’s Board of Standards and Appeals for a special use permit (SUP). However, the City’s Department of Sanitation (DOS) took various steps opposing the Congregation’s request for an SUP. In addition, the City successfully acquired the Congregation’s property via condemnation by following a two-step procedure: (i) It first filed an application for site selection and approval of the “project site” for use as a sanitation garage, and, after final approval of the project by the City Planning Commission (CPC), (ii) the City commenced a “vesting” (i.e., condemnation) proceeding in state Supreme Court. After the City’s petition in the vesting proceeding to acquire title to the Congregation’s property was granted and the Appellate Division and Court of Appeals (the state’s highest court) affirmed, plaintiffs commenced the instant action in federal court alleging that (a) defendants’ opposition to the Congregation’s plans to build the religious complex, and the various actions they took to secure title to the Congregation’s property, violated the Congregation’s rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and (2) defendants failed, at two stages during the acquisition process, to provide plaintiffs with sufficient notice of their actions, in violation of their due process rights. Held: (1) Under the Rooker-Feldman doctrine, the federal district court was without jurisdiction to hear plaintiffs’ claim that the project site acquisition process culminating in the N.Y. Supreme Court’s decision ordering the formal transfer of title from the Congregation to the City violated RLUIPA. The fact that the RLUIPA claim was not part of the state court vesting proceeding did not, itself, shut the door to Rooker-Feldman. (2) Even if Rooker-Feldman did not bar any aspect of plaintiffs’ complaint, that portion of plaintiffs’ RLUIPA claim flowing from the harm caused by the taking of the Congregation’s property was subject to dismissal because RLUIPA does not apply to eminent domain proceedings. (3) Plaintiffs’ remaining RLUIPA claims that (a) defendants’ actions taken in response to the Congregation’s SUP application violated RLUIPA and (b) plaintiffs’ claim that the site selection/project application and approval process before the City and its agencies violated RLUIPA, were barred by the four-year catch-all federal statute of limitations, codified at 28 U.S.C. § 1658(a). (4) Plaintiffs’ 42 U.S.C. § 1983 claim alleging that defendants violated their constitutional right to due process by depriving them of adequate notice of two critical events in the site selection/project approval process before the City and its agencies was barred by collateral estoppel, because plaintiffs’ notice arguments were identical to those raised and fully litigated in the state court vesting (condemnation) proceeding. In addition, it also appeared that the claim was untimely   Case # 3872 (E.D.N.Y.)

Church contracted for, and subsequently, closed on a 66-acre property for purposes of building a new church “campus” containing a church building and auditorium, senior housing, a school, and other facilities for “faith-based” programs. However, subsequent to execution of the contract of sale, the Town commenced condemnation proceedings for purposes of annexing the property to an adjacent public park. Seeking to enjoin the condemnation proceeding, the church commenced an action in federal district court alleging violation of its federal and state constitutional rights and the provisions of the Religious Land Use and Institutionalized Person Act (RLUIPA). The district court dismissed the RLUIPA claims on the ground that the Town’s eminent domain proceedings did not constitute a “land use regulation” under RLUIPA and hence RLIPA was not applicable. The church had also instituted a state action to review the Town’s determination to condemn the property. The state court found that the church had failed to sustain its burden of establishing that the determination was without foundation and baseless and had not demonstrated that the manner in which the Town proceeded was in bad faith. Pursuant to its statutory authority to review whether the eminent domain proceeding was in conformity with the federal and state constitutions, the state court concluded that the condemnation proceeding conformed with the Free Exercise Clause of the First Amendment to the U.S. Constitution and its counterpart in the N.Y. State Constitution. Defendants did not move in U.S. District Court to dismiss plaintiff’s claims alleging federal and state constitutional claims, but the federal court expressed the opinion that it appeared that the state court decision subjected the constitutional claims to dismissal in federal court based on res judicata. However, the U.S. District Court did decide the issue at this juncture because the parties had not briefed the issue   Case # 2143 (W.D.N.Y.)